Marsy’s Law could have unintended consequences for crime victims

When a state trooper in South Dakota shot a motorist in August, state officials refused to release his name, saying he was attacked first and had invoked his right to privacy under Marsy’s Law, a state constitutional amendment passed two years earlier.

In the same state, sheriffs stopped asking for the public’s help in solving crimes in progress to avoid inadvertently violating the law by revealing the victim’s location, according to news accounts.

The Republican speaker of the South Dakota House of Representatives said the victim protection amendment “sounded good, but it didn’t end up being what was advertised.”

Kentucky voters on Nov. 6 will consider a version of Marsy’s Law, a constitutional amendment to provide “an equivalent level of legal protection” for victims “as those who are accused and convicted.”

Proponents say the amendment, which would add 10 protections to the Kentucky Constitution, including the right to be notified of hearings and to speak out at them, will restore power to victims and help them heal.

“This will create a culture that is victim-centered,” said Meghan Wright, 31, of Louisville, who says she was sexually assaulted 10 years ago and then frozen out of a decision not to prosecute the case.

Related: What is Marsy’s Law?: Here are things to know about the ballot question

But a surprising array of opponents – and not just criminal defense lawyers – warn that Marsy’s Law will produce unintended consequences in Kentucky, as it has in South Dakota.

The Kentucky Coalition Against Domestic Violence, for example, refuses to endorse the ballot measure, saying victims are often charged as defendants when they fight back against an assailant, and that abusers will be able to exploit the expanded protections to continue their harassment.

State Sen. John Schickel, R-Union and a former police officer, said the proposed law “does nothing to protect victims” and will “hurt the search for truth.”

“The Constitution was created to protect us from the power of government, not from each other,” he said.

Hardin Commonwealth’s Attorney Shane Young calls Marsy’s Law “feel-good legislation” that will add to court delays by giving victims – and their attorneys – official standing to speak out.

“There is an old saying that if you have one lawyer in a town he will starve, but if you have two, they will make a fortune,” said Young, who is president of the Kentucky Commonwealth Attorneys Association but speaking for himself.

Victims and their lawyers could conceivably demand the right to argue cases at the Kentucky Court of Appeals and Supreme Court in addition to counsel for the defendant and the state, said Rebecca DiLoreto, a former public defender who represents the Kentucky Association for Criminal Defense Lawyers.

That organization says the amendment will “turn the presumption of innocence inside out” because it requires a judge to designate people as victims before there is a finding that a crime occurred or that the accused committed it.

The language on the ballot asks only: “Are you in favor of providing constitutional rights to victims of crime, including the right to be treated fairly, with dignity and respect, and the right to be informed and have a role in the judicial process?

Ruling last month in a suit brought by the defense lawyer’s group, Franklin Circuit Judge Thomas Wingate found the language vague and uninformative and ordered the Secretary of State not to certify the vote as official.

The measure will remain on the ballot, which was already printed. Should it pass and Wingate be reversed by a higher court, it will become part of the state’s 127-year old Constitution.

Six states have passed some version of Marsy’s Law, and voters will consider it this year in four others besides Kentucky – Florida, Georgia, Nevada and Oklahoma.

Marsy’s story

The law is named after Marsalee (Marsy) Nicholas, who was stalked and killed in 1983 in California by her ex-boyfriend. A week later, her mother and brother, Henry T. Nicholas III walked into a grocery store after visiting Marsy’s grave and were confronted by the accused murderer. They had not been told he was out on bail.

Nicholas, the billionaire founder of semiconductor company Broadcom Corp., has almost single-handedly bankrolled an effort to get the law on the books in every state and in the U.S. Constitution, spending at least $27 million on the cause.

He has spent $4.59 million this year in Kentucky alone, according to election-finance records. His campaign includes TV commercials featuring actor Kelsey Grammer, who says in a 30-second spot that when his father was murdered and the killer eventually was released, Grammer found out about it from a supermarket tabloid. He says that wouldn’t happen under Marsy’s Law.

The Kentucky campaign, which worked through three legislative sessions to get the amendment on the ballot, has spent $379,978 on lobbying the General Assembly since 2015, employing 18 lobbyists, according to the Legislative Research Commission.

Nicholas has had run-ins with the law himself. Federal securities fraud and narcotics charges against him in 2008 were dismissed, but in August he was arrested in Las Vegas on suspicion of narcotics trafficking after police discovered heroin, cocaine, methamphetamine and ecstasy in his hotel suite. He has pleaded not guilty and been released pending trial.

Spurred by Marsy’s death, the legislature in 1986 enacted a series of laws dubbed the Kentucky Crime Victim Bill of Rights that includes several of the protections also in Marsy’s Law, including the right to notice of hearings, to consult with the prosecution, and to restitution.

But Marsy’s Law advocates say that until those rights are enshrined in the state Constitution, a victim’s rights will always be weaker than those of the criminal.

Ashlea Christiansen, the state director and counsel for Marsy’s Law for Kentucky, said putting rights in the Constitution means permanency, visibility and equal application. While some prosecutors and advocates now provide strong protections for victims, others have not. Protection “shouldn’t depend on your zip code,” she said.

Wright said that when she was assaulted in Calloway County, a prosecutor without her input decided not to file charges.

“Defendants have a seat at the table and survivors don’t,” she said. “There was never a place for me.”

Christiansen said Kentucky’s version of Marsy’s Law has been tailored to avoid some of the problems in South Dakota, in which all victims had to be notified. In Kentucky, they would need to opt in for notices.

Marsy’s Law for Kentucky lists support on its website from more than three dozen victim groups, including the Center for Women and Families in Louisville and the state’s 13 regional rape crisis centers.

The measure has been endorsed by dozens of elected officials statewide, including 24 members of the Louisville Metro Council, Louisville Mayor Greg Fischer and Louisville Metro Police Chief Steve Conrad, who says: “The scales of justice are currently tipped in favor of the accused, and Marsy’s Law will right this imbalance.”

But the endorsements include only one county attorney and no commonwealth’s attorneys.

Young, the Hardin elected prosecutor, said the Kentucky Commonwealth Attorney’s Association takes no position on the measure.

He said the measure, which allows victims to hire lawyers to represent them in court, could prove costly to taxpayers if the courts ultimately rule that indigent victims are entitled to state-provided counsel.

The Kentucky Coalition Against Domestic Violence says that “only affluent women who can hire an attorney will benefit.” The coalition, which administers $9.5 million in state and federal funds annually to 15 programs statewide, also says that in domestic crimes, it is not always clear who the victim is.

“Advocates who work with people who have experienced intimate partner violence know that survivors of such abuse often end up being charged with crimes related to their victimization,” its general counsel, Meg Savage, has written. “Many times domestic violence victims are also defendants. Victims may be arrested for fighting back against their perpetrators, writing cold checks to support their children or because of addiction.”

Restoring balance?

For most of American history, victims have not had much of a voice in criminal cases beyond answering questions on the witness stand because criminal cases pit the state against the accused, not the victim against the defendant.

Victims in Kentucky already have the right to speak out at sentencing and before the parole board, criminal defense lawyers say. But they maintain the rights of criminal defendants alone deserve constitutional protection because their liberty and sometimes even their life is at stake.

The defense attorney’s association says that Marsy’s Law could undermine the constitutional right to cross-examine witnesses because it requires giving “due consideration to the victim’s… dignity and privacy.” What if a victim asserts that right on the witness stand, defense lawyers ask?

Christiansen counters that hasn’t happened in other states, and the federal constitutional rights of the defendant would trump victim’s rights under the state constitution.

Marsy’s Law also gives the victim the same right to be present at trial as the defendant. That would end a practice dating back to biblical times in which witnesses are kept out of the courtroom during proceedings to prevent them from tailoring testimony to match that of other witnesses.

State Sen. Whitney Westerfield, R-Hopkinsville, who sponsored the bill to put Marsy’s Law on the ballot, said tainted testimony could be uncovered through vigorous cross-examination.

David Ward, a Winchester lawyer and president of the defense attorney’s group, said that if prosecutors are not notifying, consulting with and protecting victims as required under the existing Crime Victim Bill of Rights, the solution is providing consequences when they don’t do their job.

“The problem is that it is easier for legislators to back a constitutional amendment in the name of ‘victims’ rights’ than it is to provide oversight, funding, and enforcement of the victims’ rights we already have,”’ he said.

What’s in Marsy’s Law

To secure for victims of criminal acts or public offenses justice and due process and to ensure crime victims a meaningful role throughout the criminal and juvenile justice systems, a victim, as defined by law which takes effect upon the enactment of this section and which may be expanded by the General Assembly, shall have the following rights, which shall be respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems:

• Victims shall have the reasonable right, upon request, to timely notice of all proceedings and to be heard in any proceeding involving a release, plea, sentencing, or other matter involving the right of a victim other than grand jury proceedings.

• The right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused.

• The right to proceedings free from unreasonable delay.

• The right to consult with the attorney for the commonwealth or the attorney’s designee.

• The right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process.

• The right to timely notice, upon request, of release or escape of the accused.

• The right to have the safety of the victim and the victim’s family considered in setting bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction.

• The right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court, except that in the case of a juvenile offender the court shall determine the amount and manner of paying the restitution taking into consideration the best interests of the juvenile offender and the victim.

• The right to fairness and due consideration of the crime victim’s safety, dignity, and privacy.

• The right to be informed of these enumerated rights, and standing to assert these rights.

• The victim, the victim’s attorney or other lawful representative, or the attorney for the Commonwealth upon request of the victim may seek enforcement of the rights enumerated in this section and any other right afforded to the victim by law in any trial or appellate court with jurisdiction over the case. The court shall act promptly on such a request and afford a remedy for the violation of any right.

• Nothing in this section shall afford the victim party status, or be construed as altering the presumption of innocence in the criminal justice system.

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Written by Andrew Wolfson. Cross-posted with permission from the Courier-Journal via the Kentucky Press News Service.

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